Judge Colleen Kollar-Kotelly (D.D.C.) denied individual defendants' renewed motion to dismiss a plaintiff's Bivens claim for retaliatory prosecution in violation of the First Amendment. The ruling, which applies the Supreme Court's ruling from this summer in Ziglar v. Abbasi, means that the plaintiff's First Amendment Bivens action can move forward. (This isn't a ruling on the merits; it only says that the plaintiff's claim survives a motion to dismiss in light of Abbasi.)

The ruling is notable, because the Court appeared to substantially restrict Bivens actions in Abbasi essentially to those very few situations where the Court has allowed a Bivens action. (We posted on this here.) But this ruling reads Abbasi differently--not to prohibit a Bivens action under the First Amendment.

The case, Loumiet v. United States, arose when an attorney for a target of an investigation by the Office of the Comptroller of the Currency complained to the OCC Inspector General that OCC investigators engaged in "highly unusual and disturbing" behavior during their investigation, including making racist comments to the target's staff. The OCC then initiated an enforcement proceeding against the plaintiff pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act, claiming that the plaintiff had "knowingly or recklessly . . . breach[ed his] fiduciary duty," and as a result "caused . . . a significant adverse effect" on the target of the investigation. An ALJ recommended dropping the matter, and the OCC agreed. The plaintiff filed for attorney's fees under the Equal Access to Justice Act and won in the D.C. Circuit. That court ruled that "the Comptroller was not 'substantially justified' in bringing the underlying administrative proceedings against [the plaintiff]."

The plaintiff then brought a Bivens claim for retaliatory prosecution in violation of the First Amendment, among other claims. The court earlier declined to dismiss the case, but the individual defendants asked the court to reconsider after Abbasi came down this summer.

The court in this ruling again declined to dismiss the case.

The court assumed, without deciding, that the case raised a "new context" under Bivens. (The court said that the D.C. Circuit hadn't yet had an opportunity to rule on Abbasi, so it couldn't really say what a "new context" was in the post-Abbasi world of Bivens--in particular, whether Abbasi set a new standard for "new context.") The court went on to say that special factors did not counsel against a Bivens remedy:

Unlike the facts in Abbasi, this is not a case in which "high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis." Rather, Plaintiff's prosecution was separate from, and subsequent to, the OCC's enforcement action against his bank client; the prosecution against Plaintiff does not seem to have been "urgent," driven by "crisis," or, for that matter, necessary to the underlying enforcement action against Plaintiff's client. Indeed, the Court already made a fact-specific inquiry that a Bivens claim will not deter lawful enforcement activity.

Finally, the court said that the defendants couldn't show that the plaintiff had alternative relief, here under the FIRREA, the Administrative Procedure Act, or the Equal Justice Act.

U.S. District Judge Timothy J. Kelly (D.D.C.) ruled in favor of the President in the ongoing dispute over who is acting director of the Consumer Financial Protection Bureau. We last posted here; WaPo has a story here.

Judge Kelly ruled from the bench against Leandra English, the CFPB deputy director, and declined to unseat Mick Mulvaney, President Trump's appointee.

This is hardly the final say in the matter. We'll post on any written decision when it's released.

Leandra English, the former deputy director appointed by outgoing Director Richard Cordray, was in line for the job under a Dodd-Frank provision that says that the deputy director becomes acting when the director leaves. But Mick Mulvaney was also in line for the job after President Trump appointed him pursuant to the Federal Vacancies Reform Act. We outlined the competing appointment provisions in a post yesterday. OLC came down on the President's side; so did the CFPB general counsel (who was appointed by Cordray)--and for the same reasons as the OLC.

The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988. But the Vacancies Act, by its own terms, does not apply where another statute "expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity"--which is exactly what the Dodd-Frank Act does. The President's interpretation of the FVRA runs contrary to Dodd-Frank's later-enacted, more specific, and mandatory text. The President's stance is also difficult to square with the relevant legislative history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with the current language designating the Deputy Director as the Acting Director. And the President's attempt to appoint a still-serving White House staffer to displace the acting head of an independent agency is contrary to the overall design and independence of the Bureau.

The Office of Legal Counsel issued a memo on Saturday concluding that the President had authority to appoint OMB Director Mick Mulvaney as acting head of the Consumer Financial Protection Bureau, even though the CFPB chain-of-succession says that CFPB Deputy Director Leandra English should take over the job.

The opinion, while significant, is not binding on the courts, where this dispute will inevitably be resolved.

The dispute pits two appointment authorities against each other. On the one hand, the CFPB statute says that the CFPB Deputy Director shall "serve as acting Director in the absence or unavailability of the Director." This means that English, the acting Deputy, should get the job. (Richard Cordray, the former Director, appointed English as acting Deputy shortly before he resigned on Friday.) But on the other hand, the Federal Vacancies Reform Act gives the President authority to "temporarily authoriz[e] an acting official to perform the functions and duties" of an officer of an Executive agency whose appointment "is required to be made by the President, by and with the advice and consent of the Senate." This means that Mulvaney should get the nod.

So who wins? OLC says the President does.

The Federal Vacancies Reform Act says that its process shall be the "exclusive means" for authorizing acting service "unless" another statute expressly designates an officer to serve as acting. The CFPB statute does just that. But according to OLC, this doesn't mean that the CFPB statute prevails; it simply means that both the CFPB statute and the Federal Vacancies Reform Act provide available methods for appointment:

By its terms, [the Vacancies Reform Act says that it] shall be the "exclusive means" of filling vacancies on an acting basis unless another statute "expressly" provides a mechanism for acting service. It does not follow, however, that when another statute applies, the Vacancies Reform Act ceases to be available. To the contrary, in calling the Vacancies Reform Act the "exclusive means" for designations "unless" there is another applicable statute, Congress has recognized that there will be cases where the Vacancies Reform Act is non-exclusive, i.e., one available option, together with the office-specific statute.

But even so, how do we know the President wins? According to OLC,

as with other office-specific statutes, when the President designates an individual under the Vacancies Reform Act outside the ordinary order of succession, the President's designation necessarily controls. Otherwise, the Vacancies Reform Act would not remain available as an actual alternative in instances where the office-specific statute identifies an order of succession, contrary to Congress's stated intent.

Finally, because Congress didn't include the CFPB Director in the statutory carve-outs to the Vacancies Reform Act for other independent agencies, OLC concluded that it's subject to that Act, even though Congress designed it as independent. That's because the carve-outs refer to multi-member boards (which the CFPB is not) and other specified agencies (not including the CFPB).

Judge William H. Orrick (N.D.Cal.) granted summary judgment for the plaintiffs and issued a nationwide permanent injunction against the defunding and enforcement provisions of President Trump's sanctuary cities executive order.

The ruling deals a serious blow to the President and his efforts to rein in sanctuary cities. This ruling goes to the EO itself, not AG Sessions's interpretation and enforcement of the EO, as the more recent temporary injunctions did. We posted most recently on the case in Philadelphia here.

The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves. Because the Executive Order violates the separation of powers doctrine and deprives the Counties of their Tenth and Fifth Amendment rights, I GRANT the Counties' motions for summary judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a).

Recall that Section 9(a) says that "[i]n furtherance of [the policy to ensure that states and their subdivisions comply with 8 U.S.C. Sec. 1373], the [AG] and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes . . . ." Importantly, the EO didn't specify which federal grants were at risk; it apparently applied to all federal grants.

AG Sessions tried to restrict the EO to JAG/Byrne grants from the Justice Department, but Judge Orrick had nothing of it: "The AG Memorandum not only provides an implausible interpretation of Section 9(a) but is functionally an 'illusory promise' because it does not amend Section 9(a) and does not bind the Executive Branch. It does not change the plain meaning of the Executive Order."

Judge Orrick said that a nationwide injunction was appropriate "[b]ecause Section 9(a) is unconstitutional on its face, and not simply in its application to the plaintiffs here . . . ."

The ruling is a major victory for the city, and a significant strike against the federal crack-down on sanctuary cities. It follows a similar, but less sweeping, ruling in the Chicago case.

Judge Baylson ruled that AG Sessions's order to condition DOJ Byrne JAG grants on Philadelphia's agreement to give federal authorities notice when city officials detain an unauthorized alien (the "notice condition"), to give federal authorities access to city jails (the "access condition"), and to certify that it complies with 8 U.S.C. Sec. 1373 likely violate federal law and the Constitution.

In particular, Judge Baylson ruled that the conditions violate the Administrative Procedure Act, because they're arbitrary and capricious. He also ruled that they "are improper under settled principles of the Spending Clause, the Tenth Amendment, and principles of federalism." On the constitutional issues, he said that the conditions are not sufficiently related to the purposes of the Byrne JAG grant program (in violation of the conditioned-spending test under South Dakota v. Dole), because "[i]mmigration law [the purpose of the conditions] has nothing to do with the enforcement of local criminal laws [the purpose of Philadelphia's Byrne JAG grant]." He also said that the conditions were ambiguous (also in violation of South Dakota v. Dole), because "the Access and 48-hours Notice Conditions cannot have been unambiguously authorized by Congress if they were never statutorily authorized," and the "malleable language [of Section 1373] does not provide the 'clear notice that would be needed to attach such a condition to a State's receipt of . . . funds.'" (The court also said, but "[w]ithout specifically so holding," that "Philadelphia is likely to succeed on the merits of its Tenth Amendment challenge" to the conditions, because the notice and access conditions "impose affirmative obligations on Philadelphia, with associated costs of complying with such conditions," and because the compliance condition (on 1373) "would inherently prevent Philadelphia from, among other things, disciplining an employee for choosing to spend her free time or work time assisting in the enforcement of federal immigration laws" (and thus commandeers the city).

Finally, Judge Baylson noted that Philadelphia isn't a sanctuary city, anyway--at least not in the way defined by federal law. In particular, he wrote that the city "substantially complies with Section 1373."

Judge Ellen Segal Huvelle (D.D.C.) ruled this week that the Defense Department's enhanced vetting policies for noncitizen-soldiers who seek to apply for expedited citizenship under federal law likely violates the Administrative Procedure Act. The court also provisionally certified a class in the case, and certified a class in a related case challenging a different aspect of the same problem.

The rulings are significant, even if preliminary, wins for the two groups of noncitizens soldiers in their efforts to apply for citizenship by virtue of their military service. The rulings are also a significant setback for the DOD's efforts to ramp-up security screenings for noncitizen soldiers before they can apply for citizenship, and yet another setback for the administration in its immigration policies.

One ruling, Kirwa v. DOD, says that the DOD's failure to issue a certain form, the N-426, to noncitizen reservists who applied for service before October 13, 2017, and who were (and are) awaiting assignment to basic training likely violates the APA. (The N-426 is a form that simply certifies a noncitizen-soldier's military service. It's a requirement for a noncitzien reservists and active-duty soldiers to apply for an expedited path to citizenship under federal law.) That same ruling also provisionally certifies a class; a related ruling, Nio v. DOD, later this week certified a class in a different case (more below).

Kirwa arose when DOD changed course in the spring of 2017 and began to decline requests for a certain form, the N-426, which simply certifies a noncitizen soldier's military service as a prerequisite to his or her citizenship application, to noncitizen reservists who were awaiting assignment to basic training. (DOD previously issued the N-426 to noncitizen reservists during this period, although an earlier policy change, in September 2016, led to some earlier delays in issuing the form.) Plaintiffs sued to get the DOD to issue the forms, but DOD then issued new policy guidance on October 13, 2017. The new guidance imposed additional security-vetting requirements before the DOD would issue the N-426 to noncitizen-reservists, further delaying the plaintiffs' ability to apply for citizenship (and subjecting them to deportation proceedings in the meantime). The plaintiffs amended their complaint and motion for class certification based on the new guidance.

The court ruled that the plaintiffs were likely to succeed on the merits of their Administrative Procedure Act claim, because the "DOD offered no reasoned explanation for this change, thereby suggesting that DOD's decision was an arbitrary and capricious one." (The court ruled that it could hear the case under the APA, despite the government's claim that the APA didn't reach this kind of decisionmaking and despite the government's claim that the case touched on national security.) Moreover, the court said that the October 13 guidance changed the ground-rules for the plaintiffs, who enlisted based on very different policies and processes for noncitizen-reservists to apply for expedited citizenship. The court granted the plaintiffs' motion for a preliminary injunction and provisionally certified a class (noting that it included about 2,000 individuals).

In Nio, the court certified a class of noncitizen-soldiers who had a completed N-426 form and applied for expedited citizenship with DHS, but were held up because of DOD's enhanced vetting processes. (The court noted that there are about 400 to 500 members of the class.)

Judge Vince Chhabria (N.D. Cal.) today denied the states' motion for a preliminary injunction in the their case against the Trump administration for halting cost-sharing reduction ("CSR") payments to insurance companies on the Obamacare exchanges. We posted on the complaint here.

Judge Chhabria ruled that the plaintiff-states did not demonstrate a likelihood of success on the merits, because Congress didn't appropriate funds for the CSRs, even though the ACA requires that the government pay them:

In sum, the [ACA] requires the federal government to pay insurance companies to cover the cost-sharing reductions. The federal government is failing to meet that obligation. If there was no permanent appropriation in the Act, Congress is to blame for the failure, because it has not been making annual appropriations for CSR payments. The Administration cannot fix Congress's error, because the Constitution prevents the Administration from making payments on its own. In contrast, if the Act created a permanent appropriation, the Administration is legally at fault for the federal government's failure to meet its obligation under the Act to make CSR payments. On the merits, it's a close and complicated question, even if the Administration may seem to have the better argument at this stage.

As to the other preliminary injunction factors, Judge Chhabria noted that most of the states in the lawsuit have taken measures with the insurance companies to offset the impact of the administration's decision not to pay CSRs to the consumers. States did this by encouraging insurance companies to increase premiums in certain plans so that consumers would qualify for higher premium tax credits (which, unlike the CSRs, have a permanent appropriation under the ACA). For most consumers, the court said, the higher premium tax credits would well offset any harm based on the administration's decision not to pay CSRs.

The ruling means that the court won't require the administration to make CSR payments, at least for now.

As soon as President Trump announced last week that his administration would halt cost-sharing reimbursement payments to insurers on the Obamacare exchanges, 18 states and the District of Columbia sued, arguing that the move violates federal law and the Take Care Clause of the Constitution.

The cost-sharing reimbursements ("CSRs") are designed to reimburse insurers for extending insurance to low- and moderate-income individuals and families on the Obamacare exchanges. Recall that while the ACA requires the government to pay CSRs, Congress failed to appropriate funds for them under President Obama. The President nevertheless paid them, and the House of Representatives sued. Judge Rosemary Collyer (D.D.C.) ruled in favor of the House and stopped the payments. The D.C. Circuit, however, held the case in abeyance as the Trump administration decided whether to stop the payments. We posted most recently here.

The Trump administration continued the CSRs--until last week.

Eighteen states and the District of Columbia immediately brought suit in the Northern District of California. The complaint points out that 42 U.S.C. Sec. 18071(c)(3)(A) says that the Secretary "shall make periodic and timely payments [CSRs]" to the insurers and argues that the President's decision not to make payments violates the Administrative Procedure Act and the Take Care Clause. The complaint also catalogues the familiar and many ways that the Trump administration is actively undermining the ACA, and argues that these, too, violate the Take Care Clause.

The lawsuit pits the fact that the ACA requires CSRs against the fact that Congress declined to fund them, against the backdrop of the well-integrated and complementary provisions in the ACA, which could all fall apart without the CSRs. When Judge Collyer address these issues, she wrote,

Nothing in Section 1402 prescribes a "periodic and timely payment[]" process, however. Nor does Section 1402 condition the insurers' obligation to reduce cost sharing on the receipt of offsetting payments.

***

Such an appropriation [for CSRs] cannot be inferred [from the integration between refundable tax credits, which were funded by Congress, and CSRs, which were not], no matter how programmatically aligned the Secretaries may view [those sections]. . . .

Payment out [CSRs] without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.

The bills, S. 1735 (sponsored by Senators Graham, Booker, Whitehouse, and Blumenthal) and S. 1741 (sponsored by Senators Tillis and Coons), would both codify the heightened "for cause" firing standard already in the DOJ regs. They'd also provide independent judicial oversight of any termination.

But they differ in the way they'd provide judicial oversight. The Graham-Booker bill would require the AG to file a case before a three-judge district court before firing the Special Counsel; in contrast, the Tillis-Coons bill would allow the Special Counsel to challenge the termination before a three-judge district court after the firing.

That distinction may make all the constitutional difference between the two approaches. That's because there may be Article III problems (standing, and possibly the bar on advisory opinions) with a court hearing a pre-termination challenge, as in Graham-Booker (as Prof. Steve Vladeck's suggested before the Committee). Moreover, adding a second-level determination of "for cause" prior to firing (as in Graham-Booker), but not after firing (as in Tillis-Coons), may run afoul of the prohibition on double-for-cause provisions in Free Enterprise Fund v. PCAOB (as Prof. John Duffy argued).

But more generally, the witnesses, with one exception, seemed to agree that there were no problems codifying the for-cause firing standard, so long as Morrison v. Olson remains good law. (Prof. Eric Posner argued that both bills are well within Morrison; Vladeck and Duffy more or less agreed.)

Only Prof. Akhil Reed Amar argued that Morrison is (at least de facto) no longer good law (that Justice Scalia has been vindicated), that the bills violate the separation of powers, and that, in any event, it'd be "unwise" to pass either law given the likelihood of a veto and the resulting blowback from the White House.

The ruling is a partial victory for the City and partial victory for the government. It partially halts two key conditions that AG Sessions placed on Byrne Grant recipients, but upholds a third, requiring certification of compliance with Section 1373.

Recall that AG Sessions placed three conditions on a municipality's receipt of federal funds under the Byrne Memorial Justice Assistance Grant Program: (1) that a state law or practice is in place to honor a request by DHS to provide advance notice of any scheduled release date and time for a particular alien (the "notice" condition); (2) that a state law or practice permits federal agents to have access to any correctional facility to meet with aliens and interrogate them (the "access" condition); and (3) that a local government submit a certification of compliance with 8 U.S.C. Sec. 1373, the federal law prohibiting state and local laws and practices that restrict state and local officials from sending to, or receiving from, federal officials information regarding the citizenship or immigration status of any individual, and prohibiting officials from maintaining such information or exchanging it with federal officials. (the "certification" condition).

The conditions ran up against Chicago's "Welcoming Ordinance." That Ordinance prohibits any "agent or agency" from "request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by [state law], federal regulation, or court decision." It goes on to forbid any agent or agency from "disclos[ing] information regarding the citizenship or immigration status of any person."

So Chicago sued Sessions, arguing that all three conditions were unconstitutional and unlawful.

Judge Leinenweber agreed in part and disagreed in part. As to the notice and access conditions, the court said that Sessions lacked statutory authority and exceeded his power to implement these conditions. In particular, the court held that only Congress could impose these conditions, or authorize the AG to do so, and that the statutory scheme in place didn't do that. Because the court ruled on statutory grounds, it declined to rule on the constitutionality of those two provisions.

But in contrast to its ruling on the notice and access conditions, the court held that Chicago did not show a likelihood of success on the merits of its challenge to the certification condition. The court held that this condition was authorized by Congress under the Byrne Grant statute, which says that a recipient must certify that it's in compliance "with all provisions of this part and all other applicable Federal laws" (emphasis added). The court said that Section 1373 fell into that latter category, "all other applicable Federal laws."

Moreover, it held that the certification condition didn't violate the Spending Clause and the anti-commandeering principle. In particular, the court said that Section 1373 doesn't compel Chicago to do anything; instead, it merely forbids it from doing something. The court said that the anti-commandeering principle only prohibits the federal government from requiring states or state officials to act, not from prohibiting them from acting, so Section 1373 doesn't violate it.

Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. . . . Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.

But the court went on to recognize that Section 1373 raises an unanswered constitutional question: Does the provision commandeer insofar as it prevents local governments from disciplining an employee for spending time assisting in the enforcement of federal immigration law? The court punted, leaving that novel question for appeal:

[B]y leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers' ability to extricate their state or municipality from involvement in a federal program. . . . Here, we follow binding Supreme Court precedent and the persuasive authority of the Second Circuit, neither of which elevates federalism to the degree urged by the City here. A decision to the contrary would require an expansion of the law that only a higher court could establish.

The Third Circuit ruled yesterday that a plaintiff couldn't bring a First Amendment claim against a TSA officer after the officer caused the plaintiff to be detained and charged with making a bomb threat at airport security. The case, which applied the Supreme Court's recent Bivens ruling, Ziglar v. Abassi, walks back circuit law authorizing a Bivens claim for First Amendment violations, and leaves plaintiffs with no federal judicial remedy for a TSA officer's violation of First Amendment rights.

The ruling is a faithful application of Ziglar, but also illustrates the sweep and significance of that decision in restricting constitutional tort claims, especially in areas in any way touching on national security.

The case arose when Roger Vanderklok attempted to pass through Philadelphia airport security with a length of PVC pipe, capped at both ends and containing a watch and heart-monitor for a half-marathon that he intended to run in Miami. TSA employee Charles Kieser performed a secondary screening, which Vanderklok alleged was unduly aggressive. Vanderklok said that he intended to file a complaint; Kieser then called the Philadelphia police and falsely reported that Vanderklok threatened to bring a bomb to the airport. Vanderklook was arrested and charged, but later acquitted, after airport surveillance footage undermined Kieser's story.

Vanderklok sued Kieser for a variety of violations, including a First Amendment violation, pursuant to Bivens. (The Third Circuit only addressed the First Amendment claim.) The court walked back its own circuit law, which applied Bivens to First Amendment claims, and ruled that Bivens didn't "extend" to Vanderklok's First Amendment claim.

The court noted that airport security created a new Bivens context, and that Bivens law had changed:

Our past pronouncements are thus not controlling in the specific circumstances now at issue. It is not enough to argue, as Vanderklok does, that First Amendment retaliation claims have been permitted under Bivens before. We must look at the issue anew in this particular context, airport security, and as it pertains to this particular category of defendants, TSA screeners.

Since Bivens was decided, judicial attitudes about the creation of new causes of action have changed considerably. Courts will no longer imply rights and remedies as a matter of course, "no matter how desirable that might be as a policy matter, or how compatible with the statute [or constitutional provision]." "Given the notable change in the [Supreme] Court's approach to recognizing implied causes of action . . . the Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity."

(Cites to Ziglar omitted.)

As to the Bivens analysis, the court said first that Vanderklok didn't have a remedy under the Federal Tort Claims Act, but may have had a remedy under the DHS Traveler Redress Inquiry Program.

Ultimately, it didn't matter, though, because Vanderklok's claim failed on the second Bivens inquiry. In particular, the court said second that the special factor of national security counseled against a Bivens remedy here:

A special factor counseling hesitation in implying a Bivens action here is that Vanderklok's claims can be seen as implicating "the Government's whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security." In language laden with separation-of-powers concerns in the context of foreign affairs, national security, and defense, the court wrote that it's up to Congress, not the courts, to create a remedy for constitutional violations in this kind of situation.

The court added a final "practical concern" to authorizing a Bivens remedy. It wrote that because TSA employees aren't typically law enforcement officers, they aren't trained in probable cause determinations of the type that would've been necessary here. Therefore, the court said, "a Bivens claim is poorly suited to address wrongs by line TSA employees. Indeed, the inherent uncertainty surrounding the probable cause standard is itself a factor counseling hesitation."

The City of Chicago filed suit this week against the U.S. Department of Justice over the Department's conditions on a federal law-enforcement grant designed to clamp down on sanctuary cities. The suit is just the latest escalation in the running disputes between "sanctuary" jurisdictions and the Trump Administration. We posted most recently here.

Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City's long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance. DOJ announced some time ago that it would require grant recipients to comply with Section 1373 (which requires state and local authorities to communicate with federal authorities regarding the immigration status of individuals in their custody). More recently, DOJ announced that it would also require recipients to give the federal government notice of release of any individual at least 48 hours before the scheduled release (the notice condition) and to give federal immigration officials unlimited access to local police stations and law enforcement facilities to interrogate any suspected non-citizen held there (the access condition).

Chicago claims as an initial matter that it complies with Section 1373. That's because its Welcoming Policy prohibits officers from collecting immigration information from individuals in the first place, not from communicating information to federal officers. "[T]hus there is no information for the City to share (or restrict from sharing)." And "[m]oreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials."

As to the conditions themselves, Chicago argues that they exceed the grant requirements that Congress wrote into the Byrne JAG program; that only Congress, and not the Executive Branch, can add or change the statutory conditions on the program; and that the conditions violate federal conditioned-spending rules. As to the last, Chicago says that the conditions "are not germane to the Byrne JAG funds it has received for over a decade," that the notice and access conditions would require the City to violate the Fourth Amendment (by requiring that the City continue to hold individuals without probable cause for 48 hours, that the access condition, that the conditions are ambiguous, and that they are unconstitutionally coercive. The City also argues that each condition unconstitutionally commandeers it and its officers.

The development keeps the appeal alive, even as President Trump considers halting the payments. Such a move before this week's ruling would have mooted the appeal. But now that the states can defend the payments, and oppose Judge Collyer's ruling, it's not entirely clear whether President Trump can stop the payments, or whether the D.C. Circuit might stop him if he tried.

Recall that House Republicans sued the Obama Administration for making payments to insurance companies under the ACA, even though the line-item for those payments was zero funded. The payments were designed under the ACA to subsidize insurance companies for providing affordable plans on the exchanges. But Congress allocated no money to the line-item designated for the subsidies. The Obama Administration nevertheless made payments, drawing money from another, related account. (Without the payments, insurance rates would skyrocket on the exchanges, or insurers would have pulled out, or both.)

House Republicans sued, and Judge Rosemary Collyer (D.D.C.) ruled in their favor. But she stayed her injunction pending appeal. President Trump then inherited the appeal from the Obama Administration, allowing him to drop the appeal, leave Judge Collyer's decision in place, and stop the payments. (If President Trump dropped the appeal, Judge Collyer's stay pending appeal would have gone away.) He could even have cited Judge Collyer's ruling as a reason for stopping payments, perhaps diffusing some of the political blow-back from such a move.

But President Trump didn't drop the appeal. Moreover, he has continued the payments, even as he repeatedly suggests that he might stop. Bipartisan lawmakers have encouraged him to continue payments. A final decision is due from the White House this week.

Now, with this most recent order from the D.C. Circuit, allowing states to join the suit, the appeal will continue (with the states now defending the payments, even as the Trump Administration doesn't), and Judge Collyer's stay will remain in place, at least until the D.C. Circuit rules on the case. While the stay itself doesn't prevent the President from halting payments, the states' intervention might: Because the D.C. Circuit said that the states demonstrated sufficient harm if the subsidies stop (a condition of intervention), it's not entirely clear that President Trump can stop them. And even if he can, it's not clear that the D.C. Circuit might not prevent him from stopping them (in order not to harm the states).

In other words, the states' intervention might tie the President's hands by forcing him to continue payments, even though the parties to the lawsuit might otherwise agree to stop the payments and let the case go moot.

The uncertainty here comes, on the one hand, from the fact that the President can probably stop the payments whenever he wants, irrespective of the states' intervention or Judge Collyers' ruling and stay. But on the other hand if the states argue that the President has to make payments under the ACA (and not just that he can't be prevented from making payments), then the D.C. Circuit could stop the President from halting payments. This week's ruling suggests, but does not specifically say, that the D.C. Circuit is leaving this latter option open.

But it gets even weirder. The D.C. Circuit might not even rule on the merits. That's because the states will surely challenge the House's standing to bring the case in the first place. If the D.C. Circuit kicks the case on standing grounds, that'll undue Judge Collyer's decision against the payments.

The Hill reports that Senator Lisa Murkowski (R-Alaska) set nine pro forma sessions for the Senate over the August recess. The move means that the body will be in session every three days, even if only very briefly (just to gavel in, then immediately gavel out), so that it won't formally adjourn for the recess. Without an adjournment (more particularly, without formally going into a "recess"), President Trump can't use his recess appointment power.

Senate Republicans effectively used this tactic to frustrate President Obama's efforts to fill key executive slots. In 2014, the Supreme Court sided with the Senate on the practice in NLRB v. Noel Canning. The Court in that case held as a general matter that the Senate is in session when it says it is, and it's not when it says it's not. In particular, it held that a Senate schedule with a pro forma session every three days does not constitute a "recess" under the Recess Appointments Clause (unless the Senate says so). So when the Senate sets an every-three-day pro forma schedule over the August "recess," it similarly isn't in "recess" under the Recess Appointments Clause. And President Trump therefore can't make recess appointments.

While the wide-ranging statement says that the President "favor[s] tough measures to punish and deter aggressive and destabilizing behavior by Iran, North Korea, and Russia," it also guts efforts to hold the President's feet to the fire and suggests that the President may enforce the measures (or not enforce them) nearly any way he wants. In short, given the breathtaking sweep of the statement, only time will tell whether and how the President executes the bill.

The last paragraph sums it up:

Finally, my Administration particularly expects the Congress to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine, and from using it to hinder our efforts to address any unintended consequences it may have for American businesses, our friends, or our allies.

The bill, H.R. 3364, adopts several measures to keep the President on a tight leash with regard to actual enforcement of Russian sanctions and related actions. President Trump identified those specifically. Here's a summary:

Sections 253 and 257: Recognition of Foreign Territorial Changes Effected by Force in Violation of International Law

President Trump argued that these provisions "displace the President's exclusive constitutional authority to recognize foreign governments, including their territorial bounds, in conflict with the Supreme Court's recent decision in Zivotofsky v. Kerry."

Section 253, titled "Statement of Policy," says that "[t]he United States, consistent with the principle of ex injuria jus non oritur, supports the policy known as the "Stimson Doctrine" and thus does not recognize territorial changes effected by force, including the illegal invasions and occupations of Abkhazia, South Ossetia, Crimea, Eastern Ukraine, and Transnistria."

Section 257 deals specifically with Ukraine and says that it's "the policy of the United States to support the Government of Ukraine in restoring its sovereign and territorial integrity; to condemn and oppose all of the destabilizing efforts by the Government of the Russian Federation in Ukraine in violation of its obligations and international commitments; to never recognize the illegal annexation of Crimea by the Government of the Russian Federation or the separation of any portion of Ukrainian territory through the use of military force; to deter the Government of the Russian Federation from further destabilizing and invading Ukraine and other independent countries," among other things.

Section 216: Congressional Oversight and Disapproval of Executive Actions with Regard to Sanctions

President Trump argues that "section 216 seeks to grant the Congress the ability to change the law outside the constitutionally required process" in conflict with INS v. Chadha. In particular, the provisions "purport to allow the Congress to extend the review period through procedures that do not satisfy the requirements for changing the law under Article I, section 7 of the Constitution." But the President "nevertheless expect[s] to honor the bill's extended waiting periods to ensure that the Congress will have a full opportunity to avail itself of the bill's review procedures."

Section 216 creates an oversight and checking process for Congress to review and disapprove of executive actions related to Russia sanctions. The section authorizes Congress to issue a "joint resolution of disapproval" that would halt disapproved presidential actions through a fast-tracked procedure. But ultimate disapproval would require presidential signature or a veto override, so satisfies constitutional requirements.

President Trump doesn't appear to complain about this ultimate disapproval procedure. Instead, he complains about the section's procedure to "extend the review period" in violation of Article I, section 7. In particular, section 216 temporarily halts presidential actions when they're under consideration by Congress, when the President is considering a joint resolution of disapproval, and when Congress is reconsidering a joint resolution of disapproval. According to the President, the temporary halt during these periods violates the presentment requirement, because the resolution would take temporary effect, even though the President hadn't signed it.

Sections 254 and 257: Coordinating Aid and Ukrainian Energy Security

President Trump objected that these provisions "purport to direct my subordinates in the executive branch to undertake certain diplomatic initiatives, in contravention of the President's exclusive constitutional authority to determine the time, scope, and objective of international negotiations."

Section 254 provides a "Countering Russian Influence Fund" and sets goals and standards for using that money, including specifying how the Secretary of State shall coordinate and carry out activities under the fund and how the Secretary can modify the goals of the fund. It also requires the Secretary to "establish a pilot program for Foreign Service officer positions focused on governance and anticorruption activities" in covered countries.

Section 257 requires the Secretary to "work with the Government of Ukraine to develop a plan to increase energy security in Ukraine, increase the amount of energy produced in Ukraine, and reduce Ukraine's reliance on energy imports from the Russia Federation," provides funding for those efforts, and sets standards and provides for congressional oversight.

Various Sections Restricting Entry to U.S.

Finally, the President objected to various provisions restricting visas to individuals who engage in certain, specified behavior, like supporting Iran's ballistic missile program, violating arms embargos, and the like. The President wrote that these provisions "would require me to deny certain individuals entry into the United States, without an exception for the President's responsibility to receive ambassadors under Article II, section 3 of the Constitution."

With all the activity at the Court yesterday, we might be excused for missing the Court's non-decision in Hernandez v. Mesa. But even as the Court punted, remanding to the lower court, this is a case we should pay attention to.

The case involved a border patrol agent who shot and killed a Mexican youth just on the other side of the border. (Our oral argument review is here.) The case teed up an important dispute over whether the Fourth Amendment applies outside the United States, and how the Court should decide that question. (The case also asked whether the agent enjoyed qualified immunity for a related Fifth Amendment claim.)

But then the Court added a third QP--whether the plaintiffs had a Bivens claim, an issue that the lower courts dodged--signalling that the Court thought this was a substantial, even threshold, issue. Then just last week in Abbasi the Court ruled that 9/11 detainees did not have a Bivens claim and in the course substantially narrowed the Bivens doctrine. Yesterday the Court put these two pieces together and took them to their logical conclusion: It remanded Hernandez with instructions to consider, as a threshold matter (that is, before the courts gets to the extraterritoriality question, and possibly even before the court gets to the qualified immunity question), whether the plaintiffs have a Bivens claim in light of Abbasi.

In other words, the plaintiffs will only prevail if they can show that special factors don't counsel against extending a Bivens remedy to this case. And given the very broad approach to "special factors" in Abbasi, that could be quite hard to do.

At the same time, the Court ruled that the lower court improperly granted qualified immunity to the agent. The Court said that the agent couldn't have known that Hernandez was Mexican (not American), and the lower court therefore erred in relying on the fact that Hernandez was "an alien who had no significant voluntary connection to . . . the United States."

That may be a hollow victory for the plaintiffs, however, if the courts rule as a threshold matter that they lack a Bivens claim. If they so rule, there'll be no need to even consider qualified immunity, or, for that matter, the extraterritorial application of the Fourth Amendment.

The Supreme Court ruled today that post-9/11 "of interest" detainees could not sue executive officials for damages for constitutional violations during their detention. Moreover, the ruling in Ziglar v. Abbasi all but wipes out future damages remedies against federal officials for constitutional violations, except in the very narrow circumstances of three cases where the Court has found such a remedy. (And those cases may be hanging on by just a string.)

The case arose when post-9/11 detainees at a federal detention facility sued then-AG John Ashcroft, then-FBI Director Robert Mueller, and then-INS Commissioner James Ziglar for abusive detention policies in violation of their Fourth- and Fifth-Amendment rights. The plaintiffs sought monetary damages under Bivens.

The Court today rejected those claims. In an opinion abounding with deference to Congress, Justice Kennedy, writing for himself and Chief Justice Roberts and Justices Thomas and Alito (Justices Sotomayor, Kagan, and Gorsuch were all recused), held that the case raised a new Bivens context and that special factors counseled against a Bivens remedy.

As to context, the Court set out this test:

If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk or disruptive intrusion by the Judiciary into the functioning of other branches; or the present of potential special factors that previous Bivens cases did not consider.

In other words, if a new case isn't nearly on all fours with one of the three cases where the Court has found a Bivens remedy--Bivens itself (a Fourth Amendment violation), Davis v. Passman (an assistant's Fifth Amendment Due Process claim against a Congressman for gender discrimination), and Carlson v. Green (a prisoner's estate's Eighth Amendment Cruel-and-Unusual claim)--there's a new context. And the Court said that this case presented a new context.

As to special factors, the Court said that the claims "call[ed] into question the formulation and implementation of a general policy," that the policy related to the government's response to the 9/11 attacks (a national security concern, traditionally an area for the executive), that Congress had not provided a damages remedy, and that other remedies (injunctive relief, a habeas claim) were available.

Between the Court's very narrow view of new circumstances and its very broad view of special factors counseling against a Bivens remedy, this case failed. And the ruling ensures that very few future Bivens cases will succeed.

On another issue, the Court remanded a related claim against the prison warden, instructing the lower court to conduct a special-factors analysis. Finally, the Court rejected the plaintiffs' civil-rights conspiracy claim, holding that the defendants enjoyed qualified immunity, because the question whether officials all within the executive branch could constitute a conspiracy "is sufficiently open so that the officials in this suit could not be certain that [conspiracy] was applicable to their discussions and actions."